Cameron Smith v United Safety and Survivability Corporation Pty Ltd

[2024] FWC 1453

[2024] FWC 1453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Cameron Smith
v

United Safety and Survivability Corporation Pty Ltd

(U2024/2155)

DEPUTY PRESIDENT COLMAN MELBOURNE, 4 JUNE 2024

Application for an unfair dismissal remedy – application dismissed under s 399A

1. Cameron Smith has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act). United Safety and Survivability Corporation Pty Ltd (USSC) has asked the Commission to dismiss the application under s 399A because Mr Smith has repeatedly failed to attend proceedings in the Commission as required and has failed to comply with directions. Deputy President Clancy is currently absent. The s 399A application has been allocated to me for determination.

1. The background is as follows. On 1 March 2024, the Commission notified the parties that a staff conciliation would occur on 27 March 2024. Mr Smith did not attend the conference. Efforts by the Commission to contact him were unsuccessful. On 18 April 2024 the matter was allocated to Deputy President Clancy, who listed the matter for a telephone mention on 22 April 2024, and issued directions requiring Mr Smith to file materials by 9 May 2024. On 19 April 2024, Mr Smith sent a message to chambers stating that he had been having problems with his telephone but that he now had a new number, and that he had not attended the staff conciliation because he had been the victim of an assault and was unable to attend.

1. At the commencement of the telephone mention on 22 April 2024, Mr Smith said that he was driving a car and could not pull over as he was on his way to an appointment. He also said that he did not have the Commission’s directions. The directions were resent to Mr Smith. But he did not comply with them. He filed no materials. The matter was listed for a non-compliance hearing on 13 May 2024. Mr Smith did not attend and could not be contacted.

1. On 27 May 2024, USSC’s solicitors sent correspondence to chambers, copied to Mr Smith, stating that the company intended to make an application for the matter to be dismissed under s 399A, and requesting a telephone mention. They noted that Mr Smith had failed to attend the conciliation, the telephone mention, and the non-compliance hearing, and that he had failed to comply with the directions to file materials by 9 May 2024. The Deputy President replied, copying Mr Smith, stating that if it was the USSC’s intention to make a s 399A application, it was to file and serve submissions by noon on 29 May 2024. 

1. On 28 May 2029, Mr Smith emailed chambers, stating that he was unable to attend the ‘meetings’ referred to by USSC due to ‘short notice’ and because he had been ‘in the middle of psychology appointments’. He attached screenshots of appointment times and dates. He said that he did not feel comfortable speaking to his former employer.

1. Later that day, Deputy President Clancy wrote to Mr Smith and again directed him to file his written materials, and also to provide an explanation of why he had not complied with directions. Mr Smith was directed to do these things by 3 June 2024. He was told that a failure to do so would result in the s 399A application being determined based on the material before the Commission and that Mr Smith’s unfair dismissal application would likely be dismissed.

1. On 29 May 2024, USSC filed submissions, copied to Mr Smith, stating that its correspondence of 27 May 2024 should be taken to be the s 399A application and that the requirement of the rules for lodgement of a form F1 should be waived. It contended that Mr Smith’s failure to attend the various proceedings before the Commission was unreasonable, as was his failure to comply with the directions to file materials, and that the Commission should dismiss Mr Smith’s unfair dismissal application.

1. Mr Smith failed to comply with the Deputy President’s directions of 28 May 2024. He has not filed submissions or an explanation of his failure to comply with the earlier directions.

Consideration

1. Section 399A of the Act provides as follows:

399A      Dismissing applications

(1)   The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a)   failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b)   failed to comply with a direction or order of the FWC relating to the application; or

(c)   failed to discontinue the application after a settlement agreement has been concluded.

....

(2)   The FWC may exercise its power under subsection (1) on application by the employer.

(3)   This section does not limit when the FWC may dismiss an application.

1. I am satisfied that the employer has made an application under s 399A. Its message to chambers expressed an intention to make an application. The Deputy President then stated that if that was the case, USSC was to file a submission. Clearly, this would be taken to be the application. The form F1 is the default form to be used under the rules when no other form is prescribed but the rules allow the Commission to waive this requirement and I do so. The correspondence and submission filed by USSC provide the information that an F1 would have required. It clearly sets out the application that is being made, what relief is sought, and why. I further find that there are no contested facts in relation to the s 399A application, and that there is no reason why the s 399A application should not be determined based on the information before the Commission, as foreshadowed by the Deputy President in his correspondence to the parties.

1. On three occasions Mr Smith failed to attend proceedings in the Commission in relation to his matter. He did not explain why the assault he referred to prevented his attendance at the conciliation, or why he could not have rescheduled his psychologist appointments or asked the Commission to relist the other scheduled proceedings. But even if he had a good reason not to attend the proceedings, there was no such reason for his repeated failure to comply with the Deputy President’s directions to file materials. Mr Smith has offered no excuse or explanation for this. He has been afforded every opportunity to file materials in support of his case and has repeatedly and unreasonably failed to do so.

1. I am satisfied that the Commission’s discretion to dismiss Mr Smith’s unfair dismissal application under s 399A is engaged and that it is appropriate to exercise it. Mr Smith’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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